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No, Scott Turow, copyright is not killing American authors

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An array of enemies, from professors to Google to the Supreme Court, are dragging the U.S. towards copyright nihilism that resembles Russia — at least this seems to be the view of Authors Guild President, Scott Turow, whose latest screed entitled “The Slow Death of the American Author” claims the country is betraying its writers.

Turow’s piece, which appeared in this weekend’s New York Times, could have been a rallying cry to support American literature. Instead, it amounts to a hysterical rant full of slipshod reasoning that shows again the Guild’s propensity for tactical errors and alienating potential allies.

The central conceit of the piece is the U.S. Constitution’s intellectual property clause, which permits Congress to grant limited monopolies to “promote the Progress of Science and Useful Arts.” Turow, despite being a lawyer, miscasts the clause to suggest it awards a constitutional right to authors and to say that the current copyright system betrays the Founders. This is misleading twice over.

First, the grant of copyright is discretionary — as with many of the other items listed in Article I, Section 8, copyright is a power (like declaring war or borrowing money) that Congress can choose to exercise when it sees fit. The clause does not, as Turow writes, “instruct” Congress to protect authors’ rights.

The second problem with the constitutional conceit is that Turow and others would likely have been appalled by the Founders’ ideas about copyright protection. This was an age when Alexander Hamilton opted for piracy as an industrial strategy, and authors’ rights were precarious at best. Indeed, foreign writers received none at all (ask Charles Dickens what he thought of the Founders’ copyright law).

In lamenting the attenuated state of U.S. copyright law, Turow also fails to mention that protection for authors has been expanded from its original 28-year term to the life of the author plus 70 years. Congress and the courts, in other words, have signed off on a scheme that locks up titles like Presumed Innocent until the year 2100 or beyond — is this not enough copyright for you, Mr. Turow?

It is these absurd terms — plus harsh penalties of up to $150,000 per infringement — that have helped to make copyright such a mess in the digital age. In an era when the internet grants every writer a printing press and a distribution system, it seems absurd to hand out century-long copyright terms.

Instead of discussing how copyright can work in digital times, Turow instead lashes out at academics and librarians who are trying to find a way to distribute neglected books and locked-up research to broader audiences through efforts like the Hathi Trust. In my experience, these people respect copyright — they just don’t like the way that some abuse it — and their goal is expanding access to knowledge. Librarians at Duke are among those who are most forcefully challenging the current state of copyright; you can decide for yourself here if they are selling out authors.

In addition to a potshot at the Supreme Court, Turow also trots out the usual canard that sites like Google and Yahoo are complicit in book piracy with “paid ads decorating the margins of [their] pages.” While book piracy is indeed a problem, Turow’s suggestion that search engines are engaged in deliberate criminal behavior is far-fetched; these are mature companies with big and legitimate customers that have scant need or interest to pander to pirates. (While Google has landed in very hot water in the past over ads for illegal pharmacies, it now says it vies to curtail the bad advertising actors.)

In short, what Turow has done is to raise an important issue — how to devise an economic means to support modern literary culture — and then alienated nearly every potential ally, not to mention distorting the picture to his own ends. If Turow and the Authors Guild are really on the side of writers, they should toss the specious and acerbic arguments and work instead to build a coalition of advocates for a fair and workable copyright regime.

23 Responses to “No, Scott Turow, copyright is not killing American authors”

  1. Peter Blackstock

    “While book piracy is indeed a problem, Turow’s suggestion that search engines are engaged in deliberate criminal behavior is far-fetched; these are mature companies with big and legitimate customers that have scant need or interest to pander to pirates.”

    Your argument here lacks any substance. You say Turow’s suggestion is far-fetched — how, exactly? You imply that because Google is a “mature company” with “big and legitimate customers,” it can’t possibly want to do something illegal. Are you honestly that naive? Did you even bother to make a case that Google is NOT generating revenue through the promotion of pirated works? No, you didn’t.

    Your piece is, in the end, quite ironic. All of the same kinds of holes you allege are in Turow’s piece (and, I’ll allow, there are a few) run rampant through your own response.

  2. Casey Gregg

    Just like privacy or free speech, copyright is a balance. MPAA chief Jack Valenti wanted the limited term mentioned in the constitution to be “forever less 1 day.” But the current life plus 70 means much content will be protected for a century or more. Just look at songwriter Irving Berlin. He died just over 20 years ago, but “White Christmas” written in 1940 won’t be in the public domain for nearly 50 more years.

    Turow is certainly correct that Google is no friend to the copyright holder. Content producers get very frustrated when pirate sites are listed on the top of search results while legitimate paid sites are far down below. In today’s world only the largest companies can effectively police their copyrights, and when it comes to foreign sites there’s only so much they can do.

    The tech companies whipped their users to defeat SOPA and PIPA, but offered no solution of their own for the problem. DMCA is a weak tool to stop piracy, and until ISPs are held accountable for their users, they will hide behind it.

  3. First: Jennifer, you aren’t a writer; you’re a talentless hack with an affiliate scheme.

    Second: Jeff, you’re taking Turow to task for saying “the sky is falling” but you never bother to prove that the sky is not falling. Instead, you spend most of your time quibbling with Scott’s interpretation of the Constitution’s elastic clause. Are you suggesting that less copyright protection, rampant piracy, retail price erosion, etc. are not individual and collective threats to American authors and their capacity to make a living? Scott may be incorrect about Founders’ intent, but is his central premise invalid?

  4. Marilyn Wise

    Much like farmers, writers are put in front, but it is really the corporations who are protecting their 100 year copyrights. It would be convenient if there was some way to protect new writings for at least five years, but it doesn’t seem to exist right now. As far as print books are concerned, I expect there will still be many of them in 100 years. As some of the comments have noted, it is easy to read a print book no matter how many times the technology changes, and you don’t need a battery!

  5. Benjamin Philip

    Just because you disagree with him doesn’t mean he got it wrong. You are a product of a 20 year effort by Samuelson, Lessig, Doctorow, the EFF, and others to reinterpret history for their own professional and personal reasons. You clearly have no idea how much you have internalized the biases built into your education on this matter.

  6. Paul Bruno

    The writers who will be successful in business models of the future aren’t spending their time bemoaning the uncomfortable shifts in their industry. What you need now is a writer who makes things happen, not someone who complains about a squeaky desk chair. Enough complaining, back to work.


    Oh, absurd, ABSURD, little Jeff, canard, CANARD. You are no writer. You are part of the enemy, you and your website and your love of Google. They are thieves. Lowlives. SCUM. They are sued regularly (the French newspapers recently) and they don’t care. It’s a drop in the bucket. They also kill actors, directors (YouTube is rife with piracy). Go to the torrents and forums where Kindle-versions of every authors books are thrown all over the place. God, you are a weasel. You may be making money, shilling for whoever. Writers are in BIG trouble. Bookstores are going under. Hey, it’s not even worth my damn time arguing with a pudge-face like you. You don’t like Turow? I’m not fond of the guy myself, but copyright is being killed. Rights are trampled. Self-entitled Assange creeps and Anonymous hackers rule. As if most writers ever get a fair shake or a decent advance. No, we’re all suppose to write for the GLORY, to GIVE to others, and KEEP YOUR DAY JOB. I’d love to punch you in your smug pig-llike face.

  8. Connie

    I am a fledgling author. I write because I love to write but I also do not negate the profitability of writing. I think two of the items that stands out in Turow’s article are: the absolute authority that some of the players have over the royalties paid to authors and more discouraging piracy. None of this is addressed by the critique of the article and both are valid points. And both can be very deadly to continued livelihood of authors.

    Those points have done much to harm many other industries until someone figured out that we need to protect our commerce.

  9. Diane Farr Golling

    I’m baffled. Why, in a digital age, when ebooks are forever, should the copyright term be shortened? And how could Jennifer, above, make “so much more money” on a book she no longer owns the rights to?

    I think Turow is right. I was particularly struck by his comparison of search engines sending people to piracy sites to guys standing on street corners telling you where you can buy stolen goods. If one is criminal conduct, the other should be as well.

    • Jennifer

      “I’m baffled. Why, in a digital age, when ebooks are forever, should the copyright term be shortened?”

      – Poor people deserve to read too. If copyright lasts forever, they won’t be able to buy books. I speak from sad experience.
      – There should be a global digital library where you can find every book ever written. Right now this is impossible because copyright is too long and rules are too strict.
      – Culture should not be locked up forever. Once freed, it can be recycled by a new generation of artists. Virgil, Shakespeare, Milton, Dante and many other great artists “recycled” portions of old stories into new ones.

      “And how could Jennifer, above, make “so much more money” on a book she no longer owns the rights to?”

      Easy; I release the book free on my website, thus drawing gobs of web traffic, which I monetize through various methods. The traffic further boosts my rank in Google, which further increases the customers I can access. In the meantime, I add a hundred more pages to my book and release it as a second edition that you have to pay for. Tada! More $$$! I’ve beaten out tons of competitors in the traffic game by giving away content free as bait to lure in customers so that I can sell them stuff.

      But actually, I was mainly referring to the money I could make by monetizing all of my illegal derivative works (fanfic, etc.), which I currently give away for free. There’s big money to be had there, big money indeed. I admit I’m sorely tempted to monetize my fanworks with good ol’ anonymous, untraceable Bitcoin. I could get away with it, but I’m just too darned honest. ;P

      Another thing I could do is to gather up relevant chapters from out-of-copyright books, add some interesting commentary, and release the composition as a totally new book to the tune of “Perspectives on ___________.” A book mashup, if you will. This is difficult right now due to the complexity of securing permissions, but I know it has a lot of potential. Reference books are essentially nothing but mashups rewritten “originally” to avoid copyright violations, you see.

      The income I make now is nothing compared to what I could make if copyright were shortened and weakened. Good for artists, hmph. Not all of us!

      • Soren Kirkus

        Jennifer — The fact that you would even contemplate making money from your own fan fiction indicates that you are the lowest of parasites in the creativity food chain. You’re not an author — you’re a greedy cosplayer with a website.

      • Jennifer

        Soren Kirkus – I didn’t realize you had such a low opinion of Shakespeare, Dante, Virgil and Milton. Or were you unaware that they made money off of characters and plots that were not original in your narrow sense of the word? Here’s an interesting factoid: the original US copyright act did not forbid fanfic. It was legal then, and it should be legal now. And I am an author–a self employed one, in fact. I write fanfic as a hobby because I like making illegal art. ;P

  10. Jennifer

    Great article! As an author myself, I wholeheartedly agree with everything you’ve said. Copyright lasts way, way too long. I could be making so much more money if it only lasted five years, and yes, I release my books into into the public five years after creation. There are tons of creative ways to make money without stupid restrictions.

    And by the way, I want e-libraries. Step aside, copyright laws–you’re no longer wanted or needed.

  11. Nostradamus

    You buried your lede: “Congress and the courts, in other words, have signed off on a scheme that locks up titles like Presumed Innocent until the year 2200 or beyond.”

    According to your math, Scott Turow will live to be 180. (He’s currently 63; another 117 gets him to the year 2130, where the 70 years after death get him to 2200).

    That is extraordinary, leaving aside the truly unfathomable news that you are privy to such information.

  12. Couldn’t disagree more, and besides, the Constitution in every way, shape and form “instructs.” In that sense, it’s a guide. Let it guide the next copyright law, to protect this wonderful resource we have in the US: creativity!

  13. txpatriot

    Mr Roberts, after reading through your 672 word editorial, I get the feeling you disagree with what Mr. Thurow wrote. Yet you offer no alternative — so why should the next reader waste his time going through this like I did?

    And by the way, “an array . . . is”, NOT “an array . . . are”.

    • I mean, the point of the article isn’t to provide alternative solutions. It’s a response to Turow’s article and, frankly, it’s a very good one. I read Turow’s article this morning and found it problematic in a lot of areas, including some of the points Roberts makes above. If Roberts had written the original article, then I would expect him to provide an idea or solution. As a critique of Turow’s article, it’s not Roberts’ job to think up adequate solutions, just to hold Turow accountable for failing to do so himself. And he did so very well.